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The FBI and Technology: Do We Have an Expectation of Privacy?

In a speech last week at the State of Domestic Intelligence Reform conference organized by the Bipartisan Policy Center, FBI director Robert Mueller stressed the importance of improving the FBI’s use of technology to monitor potential threats to homeland security.  Focusing on internet communications, Mr. Mueller explained that while technology may give law enforcement officials better tools to gather intelligence and identify threats, it also gives terrorists expanded power to communicate and manage operations.  For this reason, Mr. Mueller reiterated the importance of updating wiretap laws to enable FBI and other investigators to quickly carry out electronic communications intercepts after acquiring necessary court permission.  Responding to concerns that such a capability to monitor and decrypt internet communications will greatly impede on the right to privacy, Mr. Mueller stated, “[w]e have a right to privacy, but we also have a right to ride the subways without the threat of bombings.  It’s not a question of conflict.  It is a question of balance.”

While the FBI and other federal officials continue to advocate for increased power to monitor and intercept domestic electronic communications, the courts may also be leaning towards expanded surveillance powers.  An August decision by the Ninth Circuit indicates that warrants may not be needed for placing GPS tracking devices on suspects’ cars.  See U.S. v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010).  Surprisingly, that court decided that even though the defendant’s car was within his curtilage when police placed the GPS, he had no expectation of privacy and therefore the police did not need a warrant.  This decision runs counter to a different Court of Appeals decision which held that long-term GPS tracking of the whole of a person’s movements is clearly a search and would require a warrant.  U.S. v. Maynard, 615 F.3d 544 (D.C. Cir. 2010).  The tension between these decisions underscores the uncertainty as to how courts will treat new technologies within the expectation of privacy framework and the need for warrants.

While the courts continue to struggle with the issue, it is clear that the FBI is taking full advantage of the technology at its disposal.  Last week, Wired reported the story of a young California student who found an FBI GPS tracking device on his car.  When he posted pictures of the device online, FBI agents showed up at his home and demanded the device.  The FBI has not yet commented on whether or not it had obtained a warrant before placing the tracking device.


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